A Senior Advocate of Nigeria (SAN), Dr. Akin Onigbinde, has criticised a former president of the Nigerian Bar Association, (NBA), Dr. Olisa Agbakoba (SAN), over his recent comments on the country’s judiciary.
Recall that Agbakoba had during a recent interview on Channels Television said that he has lost confidence in the nation’s judiciary and also suggested that Supreme Court decisions should be subjected to legislative reviews.
Reacting in a statement made available to newsmen on Tuesday, Onigbinde, who is a former Speaker of the Oyo State House of Assembly (OYHA), said that Agbakoba’s outright condemnation of the judiciary was unbecoming of a person of his status, adding that his view is a serious unwarranted indictment on an institution that is respected and held in awe around the globe.
According to Onigbinde, Agbakoba’s assertions that the court “now gives silly decisions,” was unexpected of someone who was once the president of the country’s foremost lawyers’ association, the Nigerian Bar Association.
He said the position taken by Agabakoba are weighty and deserved being interrogated on many grounds.
“First, this is an opinion from a very senior member of the bar, a life bencher, a silk and a former President of the Nigerian Bar Association. This being the case, was the interview the best means of ventilating whatever frustrations Dr. Agbakoba has about the judiciary?
“Did the learned senior counsel reflect on the full import and consequences of such a pronouncement coming from a person like him will provoke on the legal profession, the judiciary, law and order in the entire society?
“After enjoying 45 years of legal practice in the Nigerian legal space, is it now time to bring the house down, because the learned senior counsel perceives that the roof is now leaking!
“Secondly, giving his status, rank, years of practice as a lawyer and as an elder in the legal profession, is it that anyone within the profession or the judiciary would have refused to listen to his concerns if he had made efforts to register them? Did it not occur to Dr. Agbakoba to have shared his concerns with the stakeholders in the judicial system and take up these issues with the judiciary at the highest levels?
“There has been instances in our life as a nation, where such concerns have been taken-up by bands of professional leaders who have sought to confront such challenges. The Patriot, is a group that readily comes to mind. A more recent endeavour is that of the Justice Reform Project (JRP), a band of senior, respected, patriotic and very brilliant Nigerian lawyers, a crop of the nation’s finest and best. They also have very well articulated concerns about the justice sector of the nation.
“They have engaged the authorities of the judicial system, including the Chief Justice of the Federation, who is also the Chairman of the National Judicial Council. These engagements have ranged from robust interventions on subjects of concerns in the administration of justice across the nation, legal challenges in court; digitalisation of court processes, publication of judgements on websites of courts, and very many other live concerns.
“These are professional, effective, patriotic, far-sighted approaches to the common challenges and concerns in the justice sector,” he said.
According to Onigbinde, Agbakoba’s approach smacks of a reckless, ill-considered and empty activism that cannot positively improve the judiciary as an institution.
“What is the end-game and long-term objective of Dr. Agbakoba’s interview? Did he expect the disbandment of the judiciary the morning after the interview or did he intend to put the consciences of the justices on a hook or just to bring the institution to complete disrepute?
“National honours confer on receipients access to all levels of authorities in the country. Why is Dr. Agbakoba not willing to appropriate all the channels available to him as a leader of the bar and a national icon to address his concerns? There is such a thing in the appellate court system which is recognised and often used by courts called ‘amicus curiae.’
“It is a Latin phrase for “friend of the court.” A non-party with an interest in the outcome of a pending lawsuit who argues or presents information in support of or against one of the parties to the lawsuit. In many instances, the amicus curiae attempts to draw the court’s attention to arguments or information that the parties may not have presented, such as the effects of a particular court ruling on the interests of certain third parties.
“An amicus curiae usually presents arguments or information to the court in the form of a brief. Amicus briefs are typically filed at the appellate level, although they also may be filed in lawsuits pending at the trial court level. Amici may include:
1. Civil rights organisations and legal foundations
2. Colleges, universitiesband schools
3. Educational organisations
4. Individual scholars, faculty and administrators
5. Individuals with current or former government affiliation
6. Bar and law associations
7. Business groups and trade associations
8. Individuals and Alumni
9. Government, etc,” the lawyer said.
The former Oyo Assembly Speaker pointed out that if Agbakoba’s concern arose after the conclusion of any appeal, nothing stops him from submitting a brief for possible assistance in the future and criticism of any decision of the court.
“Which approach will deal with any mischief sought to be addressed, this or an interview? Has he ceased to be a friend of the court, an abiding role a person like Dr. Agbakoba should always play.
“Dr. Agbakoba based his condemnation of the Judiciary on his perception as a legal practitioner of more than 45 years. However, it is trite that a legal practitioner is not, and cannot perform the roles of a judge, or those of seven Justices sitting at once. A legal practitioner cannot also be a judge of the judge or off judges. Counsel have roles, judices have roles, complementary but separate.
“Generally, at trial, it is the trial judge that see all the processes, before whom the witnesses testify, he, it is, that see the sight, hear the sound and observe the manners and conducts of all in court. No advocate, no matter how cerebral or ancient his practice, can claim to have the same feel or capacity to determine from his chambers, using his own tools, how decisions should go. The law grants to the judge, in very many instances, discretion where the scale should tilt, after evaluating the facts, the law and sometimes, the special or peculiar circumstances of a dispute.
“These do not make any court infallible. This is why dissatisfied parties through counsel may pursue appeals against decisions that they disagree with. The Supreme Court too, is not infallible because it cannot go into error.
“In the immortal words of the Hon. Justice Chukwudifu Akune Oputa, of blessed memory, and referring to the decisions of the Supreme Court, in the case of Adegoke Motors Ltd v Dr. Babatunde Adesanya & Anor (1989) 3 NWLR (pt 109) 250 at 274: (1989) 5 SC. 113 at 129 he said: “We are final not because we are infallible, rather we are infallible because we are final,” he said.
Onigbinde asked the former NBA president if he can “cast the proverbial first stone in the sad and terrible story of corruption in the justice system.”
“Are all silks who they are expected to be in the discharge of their duties? Are there no mouth-gaping allegations of abuses of the judicial processes undertaken by some senior counsel? Should all senior counsel be sent to a collective incinerator on account of the misconduct of a few?
“Are there no judicial officers at all levels and across jurisdictions, who daily perform their duties with diligence, erudition and in accordance with their consciences and judicial oaths? Must all of these be painted with the same brush, which the learned senior counsel has brought out to describe the judiciary?
“As at the time Dr. Agbakoba issued the fatwa against the Supreme Court, he was still wearing a badge of honour, distinction and privilege given to him as a Senior Advocate of Nigeria by the Supreme Court. It is on this same Supreme Court that he passed a vote of no confidence, scorned and actually promoted the decimation of the constitutional status, authority and efficacy of her decisions wholesale.
“The learned senior counsel, in the course of his career travelled many illustrious lanes, as he pleased. He was a research fellow at Nigerian Institute of International Affairs (NIIA), before opting for private legal practice. As a practising lawyer, he could have become a judge, like his late illustrious father, but chose to be in private practice, and was honoured with the rank of Senior Advocate of Nigeria in recognition of distinction in practice and as a privilege.
“Having chosen his own lane, can he fairly then start to throw mud at everyone else that has chosen to travel the lane of the judiciary; whoever they may be? Those that have chosen to make the sacrifice of chosing the judicial lane are not allowed ever again to resign and come back to practice, no matter how unfairly they are maligned,” he added.
The senior advocate noted that judges have no unions and cannot reply or join issues with anyone that calls them names, no matter how unjustifiably.
“This becomes more damaging, where the scorn and condemnation is coming from a person, who will be presumed to know and to be privy to the sins being alleged. To make matters very bad, the scorn is not aimed at any individuals, but at the entire institution to which they belong collectively- the judiciary.
“The learned senior counsel is very well aware of the constitutional separation of powers, by which Nigeria is organised and governed. The judiciary exist by virtue of its creation under the 1999 Constitution (as amended). As an institution, it has existed since October1, 1963. In fact, that name was first used in 1863 by the colonial administration, through the enactment of the Supreme Court Ordinance No II with civil and criminal jurisdictions. For good or for ill, this court has existed since then. It has seen the best of jurists sit on its hallowed chairs, from then till this day.
“If anything is going wrong with the institution, is throwing the entire institution into the abyss the first option available? This institution predates his long commencement of legal practice.
“To moot or espouse the possibility of subjecting decisions of the Supreme Court to the legislature does not lie in the mouth of any lawyer. Where does that place the entire judiciary? To make it subordinate to the legislature, is that our constitutional order?
“The judiciary may have its challenges, and it does, but is it lawyers who should think-out, think through, and provide answers that are now proposing the burial of the judiciary? The legislature has its own downsides, challenges and weights that it is struggling to deal with. Is the nation going to be better served, if the Supreme Court were to become a department of National Assembly as contemplated?
“The executive arm of government is not perfect and has its challenges, but seeks to confront these with propositions that are aimed at improvement of its processes and functions. Never has it been mooted that the decisions of the Federal Executive Council be vetted or reviewed by the legislature or the judiciary.
“One of the challenges that Israel is currently facing is the recently passed legislation by the legislature of that country, the Knesset, to make the decisions of the Supreme Court of that country subject to legislative review. This law is perceived as calculated to weaken the powers of the Israeli Supreme Court. It strips the court of the powers to reject some executive decision on the basis of the “reasonableness” standard.
“This threw the entire country into a turmoil, and although the law has been passed, the court is set to review it.This is a recipe for a monumental conflict between the Knesset and the judiciary, should the court determine the law unconstitutional: without a neutral institution to mediate,” he stated.
Onigbinde further explained that Nigeria has enough troublesome scally fish it is frying presently, and cannot add this to the park.
“Leaders and elders of the bar will do better to lead more creative conversations around the challenges of the justice sector, than to bring the judiciary under condemnation, and then ship her time-honoured roles and responsibility to another arm of government.
The society will not be best served by such a move,” the senior advocate added.